Food sovereignty and the Firearms Freedom Act

By Joseph Lallande, Special to the BDN •July 22, 2011 6:53 pm

Politics often makes for strange bedfellows as is the case of the communities of Sedgwick, Blue Hill, Trenton and Penobscot that have all recently passed food sovereignty ordinances that essentially exempts local agricultural growers and producers, selling to local consumers, from state and federal regulations.

The language in the ordinance explicitly cites the U.S. Constitution as an “authority” for the ordinance. However, the authors of the ordinance must have considered the Tenth Amendment of the U.S. Constitution, which states that powers not granted to the federal government nor prohibited to the states by the Constitution are reserved, respectively, to the states or the people. And, more specifically, they must believe that the federal government by regulating local agricultural production marketed to local consumers (intrastate as opposed to interstate commerce) is overstepping the authority granted to it by the Constitution.

This is essentially the same argument embraced by members of the tea party, conservative lawyers, academics and firearms activists. The argument is also central to the legal challenges being mounted against the health care reform law. Perhaps unwittingly, the proponents of the food sovereignty ordinance have aligned themselves philosophically with all of the above groups.

In Missoula, Mont., a local gun enthusiast produced a .22-caliber rifle he called the Montana Buckaroo, which he claimed was manufactured entirely in the state of Montana and would be sold exclusively to Montana residents. He maintained that federal laws regulating the manufacture and sale of firearms did not apply to intrastate commerce.

Similar to the food sovereignty ordinances, he was successful in having the state of Montana pass the Firearms Freedom Act asserting the authority of the state to regulate firearm production and trade within its borders. Seven other states have adopted this act.

Ten state attorneys general and other interested conservative groups are backing the legal challenge to place the constitutional theory before the Supreme Court. The challenge is currently being considered by a federal appeals court in San Francisco.

Conservative groups argue that the Supreme Court erred in deciding a 1942 commerce case, Wickard v. Filburn. This case dealt with a challenge to a 1938 law that enabled the Agriculture Department to support wheat prices by setting a cap on the acreage produced. Farmers who failed to comply with the cap either had to surrender the excess production or pay a penalty. Farmer Filburn planted double his allotted 11.1 acres and refused to surrender the excess production or pay the penalty claiming that he planned to use the wheat himself and therefore was exempt from federal regulation because his production was not entering the stream of commerce.

The Supreme Court found against Filburn in a unanimous decision by Justice Robert Jackson. His decision argued that federal interstate commerce does not stop at state boundaries but reaches any activity that “may affect other states. ”Local, noncommercial activity “ may still … be reached by Congress if it exerts a substantial economic effect on interstate commerce,” he wrote. In Farmer Filburn’s case, wheat he produced would be wheat he would not purchase on the open market and if all growers were to do the same thing it would have a substantial cumulative effect on the market.

Conservative legal authorities argue that this decision stretched “the power of Congress to regulate pursuant to the Commerce Clause to the breaking point.”

If the Firearms Freedom Act comes before the Supreme Court, it is not inconceivable that the conservative justices, in deference to federalism and states’ rights, might well revisit Wickard v. Filburn and perhaps reduce its overarching reach. Growers supportive of food sovereignty should be watching the challenges to the health care law with interest and be supportive of the success of the Firearms Freedom Act in the courts.

Joseph Lallande is a retired business manager residing in Fort Fairfield.